Drink driving offence - FAQs

My husband is an alcoholic. He was recently stopped for drink driving by the police and they say he was 4 times over the legal limit? We are out of our mind with worry that he could go to prison. He’s not working at the moment and I can’t afford to pay for a solicitor. Will he go to prison and what will a solicitor cost?

Firstly this is a serious offence. Your husband should, if possible, instruct a solicitor to represent him. We would be happy to offer an initial interview to discuss the case in more detailed and thereafter provide a fixed fee quote.

I have to say that a custodial sentence in these circumstances is a real possibility. The court’s sentencing guidelines indicate that custody is appropriate for readings of over 116 milligrams of alcohol in 100ml of breath. The legal limit is 35milligrams. Therefore four times the legal limit would be 140 milligrams. It is rare to come across readings of over 150 milligrams so your husband’s reading is at the top end of what the court’s are accustomed to dealing with. On this basis a custodial sentence may well be imposed but this will very much depend on the mitigation put forward in court on his behalf. He needs representation with someone with lots of experience in dealing with cases like this as this could make a difference.

Legal Aid is likely to be available depending on your joint income. Only solicitors with a franchise and criminal defence contract are able to offer legal aid so be careful who he instructs.

My son was involved in a serious car accident, he was the only person in the car and no other vehicle was involved. He was badly injured and admitted to intensive care, after regaining consciousness 2 days later the only memory he has from the day of the accident was going to work in the morning, the accident itself happened later that evening.

At some point he was arrested for drink driving, he has no recollection of this and we have not heard from the police despite the accident being nearly a month ago, is there a time limit in which the police can charge him, and are the police allowed to use blood taken whilst he was in hospital as evidence?

The Road Traffic Act 1988 enables the police to ask a medical practitioner at the hospital to take a blood sample from an unconscious patient without the patient's knowledge or consent providing certain criteria are satisfied. However, before they are then able to subject that sample to laboratory analysis and rely on it in evidence to prove a drink driving allegation they must obtain retrospective consent to do so from the patient. It may be that sometime during the period that your son has no memory of he has, unwittingly, provided his consent to the sample being taken and tested. The question may then arise as to whether your son had the mental capacity to give his informed consent in view of his medical condition at the time. This is likely to require some evidence from the medical practitioner's responsible for his care at the time.

Refusal to provide retrospective consent upon request could lead to a chare of Refusal to provide a sample of blood which carries similar penalties to drink driving.

Whether your son was arrested or not is irrelevant. For offences of Drink Driving and Driving without Due Care and Attention the police have six months from the date of the alleged offences in which to either charge your son or lay an information at court (i.e. lodge paperwork and request a summons). It's possible that the police will at some point want to question your son about the incident and they could arrest him for this purpose at any time during the 6 months following the incident. If the police were investigating a more serious offence of Dangerous Driving then there is no time limit for bringing a prosecution.

Your son should ask for a solicitor if he receives any further contact from the police. Stephensons' 24 hour call out service is available by calling 0333 344 4889.

When I was 16 I was convicted of drink driving, a blood sample was taken to provide my alcohol reading, I've heard recently that parental consent is needed to take blood from a minor and that was not given. On these grounds could I get the conviction over turned?

The Police and Criminal Evidence Act 1984 require an appropriate adult to be present at the police station with a juvenile or other vulnerable person. An appropriate adult will often be the child's parent but not always. Very often the parents of those arrested will be unavailable to attend the police station and an appropriate adult from a Social Services panel will be asked to attend instead. An appropriate adult is there to aid communication between the police and juvenile and to look after the child's welfare. He or she is not there to provide legal advice but should certainly be present when any intimate sample, such as a blood sample, is requested from a juvenile to ensure that the request and consequences of refusal are properly understood.

If the suspect (be it an adult or juvenile) is in a hospital and, due to his/her condition is incapable of giving consent, then the consent of the medical practitioner is required before a sample can be obtained. However, there is no requirement under the Road Traffic Act 1988 for parental consent to be obtained before asking a juvenile to provide a sample of blood under Section 7 of the Road Traffic Act.

Am I required to re-take my driving test after a ban for drink driving?

You do not need to re-sit your driving test once the ban is over. However, you must reapply to the DVLA for the return of your licence before you can drive again. If you are considered a high risk offender then the DVLA will insist that you undergo a medical with one of their approved medical experts before they will return your licence. A 3 year ban and a community order as you describe sounds like a very harsh sentence if you were only 10mg in breath over the prescribed limit. A 3 year ban is imposed for offenders with a similar previous conviction within the last 10 years or who have a very high reading. High risk offenders are those with two convictions in 10 years or who had a high reading or who failed to provide a specimen.

Could you please tell me the minimum penalty for Drink Driving, Reckless Driving and Driving without insurance on a provisional licence?

Ultimately the total punishment will depend on the particular facts and circumstances of the case as they are presented in court. The likelihood is that you will receive no separate penalty for the no insurance and reckless driving offence but these will be reflected in the punishment that you get for the drink driving. Drink driving carries a minimum 12 month ban and up to 6 months in prison. The alcohol reading is something that the court will have particular regard to. However if, for example, you have also had a crash, whilst over the limit and whilst uninsured, then these factors will aggravate (ie make more serious) the offence. I would recommend you seek legal advice before going to court.

Do the drink driving laws still apply when driving in a private car park (pub)?

The drink driving laws apply to a "road or other public place".

The answer will depend on whether the land in question is a place to which the general public have unfettered access. The public usually have access to pub car parks even though they might be privately owned. Examples of car parks which might not be a public place might be those with private memberships, a sign saying "members only car park" or a barrier across the entrance/exit stopping cars from entering and exiting the car park.

I am a newly qualified driver and have just had my licence revoked due to a drink driving offence, I received a 12 month ban and no points. I have been told I need to re-apply for my licence but do not need to re-sit my test, is this correct?

The new driver provisions only apply to new drivers who accrue 6 points within 2 years of passing their tests. Those that do must resit their test. This will not apply to you on this occasion as you have not been given points. You simply have to serve your 12 month ban and then apply to the DVLA for your driving licence to be returned. It is correct that you will not be required to resit your test. The Court should have thought about offering you the drink Drive rehabilitation course which, if successfully completed, would reduce your ban by a further 3 months. This is something that must be offered and accepted at the point of sentence. If it wasn't then it's too late now, unless you appeal the sentence, which you must do within 21 days.

I am an Irish citizen with an Irish driving licence, whilst working in England I have been charged with drink driving. I intend to contest this charge, however if I lose my Court case as an Irish citizen will I be banned from driving in England?

If you lost your court case and are convicted of drink driving you will be banned because the offence carries an obligatory disqualification for a minimum of 12 months. It also carries anything up to 6 months in prison. This would have nothing to do with your nationality. The law applies equally to everyone convicted of drink driving in England and Wales.

I am going to court charged with drink driving and intend to plead guilty what will the likely sentence be?

The Magistrates Courts Association guideline sentences for drink driving offences are as follows:

BREATH

BLOOD

URINE

DISQUALIFY NOT

LESS THAN

GUIDELINE

36-55

80-125

107-170

12 MONTHS

B

56-70

126-160

171-214

16 MONTHS

C

71-85

161-195

215-260

20 MONTHS

C

86-100

196-229

261-308

24 MONTHS

CONSIDER COMMUNITY PENALTY

101-115

230-264

309-354

28 MONTHS

116-130

265-300

355-400

32 MONTHS

CONSIDER CUSTODY

131+

301+

401+

36 MONTHS

The maximum sentence for drink driving is 6 months imprisonment.

Two convictions for drink driving within a 10 year period means a minimum 3 year disqualification.

Failing to provide a breath test (Code DR70 or DR30)Penalty - Fine - up to Level 5 (£5,000) and/or 6 months imprisonment.Disqualification mandatory unless the Defendant can show he had no been and had no intention of driving whilst over the prescribed limit. The Magistrates guidelines recommend a minimum period of disqualification of 2 years.Mandatory 3 year ban for second offence within 10 years.

Driving/Attempting to Drive with excess alcohol (DR10Penalty - Fine - up to Level 5 (£5,000) and/or up to 6 months imprisonmentMandatory disqualification for at least 12 months for first offenceMandatory disqualification for at least 3 years for second offence within 10 years.

Being in charge of a motor vehicle with excess alcohol (DR40)Penalty - Fine - up to Level 4 (£2,500) and/or up to 3 months imprisonmentEither a discretionary disqualification or 10 penalty points on your licence.

Penalty - Fine - up to Level 5 (£5,000) and/or 6 months imprisonment.Mandatory disqualification for at least 12 months for first offence (18 moMandatory disqualification for at least 3 years for second offence within 10 years

After being in charge refusing to provide samples for analysis (DR60)Penalty - Fine - Level 4 (£2,500) and/or 3 months imprisonment10 penalty points on your licenceDisqualification is at the discretion of the Court

I was recently returning from a party when the police stopped me. I’d had a couple of drinks and thought I might be close to the limit. I tried to delay providing a sample to allow time to sober up. However the police then arrested me. Is this allowed? By the time I was arrested and taken to the station I was very angry and refused to give any breath test at the station as well.

Under section 6(5)(b) of the Road Traffic Act 1988 a policeman has the power to arrest a person who fails to provide a specimen of breath when required to do so in pursuance of this section and the constable has reasonable grounds to request a sample.

Unfortunately if found guilty of the offence the guidelines suggest a 2 year driving ban which is more than the minimum 12 months for drink driving.

There is however a statutory requirement on the police officer to warn the accused that he will commit a crime unless he provides a sample. This is a strict requirement and one that is not always respected by the police. In addition the court must be satisfied that the accused understood the warning and consequences of failing to provide. Our lawyers have won cases like yours on this basis. We suggest you have an interview with one of our experts to investigate your case more fully.

I recently slept in my car after a house party. I was woken by a policeman knocking on my window who asked me to provide a breath sample. I failed and was arrested. At the police station I was breathalysed again and I tried to explain that I was not driving and had no intention of doing so until I had sobered up. They have charged me with Being Drunk in Charge of a motor vehicle. Where do I stand?

In accordance with the Road traffic Act 1988 (as amended) you will have committed an offence if you either:-

drive or attempt to drive on a road or other public place; or,

are in charge of a motor vehicle while on a road or other public place; and

You are under the influence of drink or drugs.

Therefore you can see that you can commit an offence by merely being in charge of a motor vehicle. Being “in charge” has a very wide definition and can include circumstances when you’re not even sat in the car at all. It would seem that on the facts you were legally in charge of the vehicle assuming you were in possession of the keys.

There is a defence if you can show that there was no likelihood of driving while you remained unfit to do so. The burden of proof is on you to prove this but you will only need to prove this on the balance of probabilities as opposed to beyond all reasonable doubt. We’d strongly advise you to obtain a report from a forensic expert to confirm the time at which you would have been back below the legal limit. If you can establish that there was no likelihood of you driving before this time then the defence may succeed.

This is obviously a serious allegation and although you may see it as unfair there is a risk you can be found guilty in these circumstances. You should seek urgent advice.

I have been charged with Drink Driving and Driving with no insurance, what kind of punishment am I likely to receive?

If convicted of Drink Driving the sentencing guidelines would suggest a disqualification of between 16 and 20 months as well as a fine, court costs and victim surcharge. The fine will depend on your income, the court fine following a guilty plea will not usually exceed £60 and the victim surcharge will be £15. Your solicitor should ask the Magistrates to refer you to drink drive rehabilitation course which, if successfully completed, will enable you to apply for your driving licence to be returned after serving three quarters of the ban.

I have been charged with Driving with Excess Alcohol, I believe my drinks may have been tampered with, can I prove this in Court?

It is possible to argue the possibility of laced drinks as a special reason for not imposing the mandatory disqualification that excess alcohol offences carry on conviction. If you could persuade a Court that special reasons exist in your case (the onus is on you to prove this) then you could receive 3 - 11 penalty points instead of a ban. You would need evidence from an expert witness to show what your alcohol level would have been and (ideally) evidence from the lacer. However, in my experience lacers very rarely attend Court and if they do attend very rarely choose to give evidence.

I have been charged with drink driving. I gave the police a specimen of breath and my reading was 48 micrograms. However, I have since been told that they should have given me the opportunity to give blood. Is this right?

Under section 8(2) of the Road Traffic Act 1988 if you blow between 40 and 50 milligrams of alcohol per 100 millilitres of breath in the lowest of your two police station breath tests you should be given the option of providing a further sample in accordance with section 7(5) of the Road Traffic Act 1988. That is to say, the police should offer you either a blood test or a urine test which, if provided, would replace the breath sample. If this requirement is not complied with then you could have an absolute defence to the charge against you.

I would recommend that you arrange an interview with one of our expert motoring solicitors. Obviously this is a serious offence and you will face a mandatory disqualification for at least 12 months if you are found guilty of drink driving. One of our solicitors could review the evidence against you and advise you accordingly

I have had a DR10 on my licence for four years after being convicted of drink driving, I understand this will expire after 11. I am a HGV driver and the DR10 is preventing me from getting work, is there anything I can do to get this remover early?

There is nothing you can do I'm afraid. The Rehabilitation of Offenders Act 1974 determines when convictions become spent. The reason why a DR10 remains on your licence for 11 years is because under the Road Traffic Offenders Act, a second similar conviction within a 10 year period lead to an automatic 3 year minimum ban. There is no provision that enables you to seek removal of this conviction before the rehabilitation period has expired.

I have received a third conviction for drink driving within a 10 year period, what is the minimum and maximum sentence I could receive?

The minimum ban is 3 years for a second conviction for Drink Driving within a ten year period. The minimum remains 3 years for a third conviction but is likely to be more than this, possibly 4 or 5 years. If you have previously had the benefit of the drink Drive Rehabilitation course then the court are unlikely to offer this to you again. Also, you will be deemed to be a high risk offender by the DVLA and when your ban is eventually complete you will be required to undergo a medical examination by an approved medical practitioner before getting your licence back. You cannot drive until you have your licence back. In addition, the offence carries up to a maximum of 6 months in prison.

I have served 2 years of a 3 year disqualification for drink driving is it now possible to apply to get my licence back?

Yes you can apply for the early return of your driving licence after serving 2 years of a 3 year ban. This is done by way of application to the court who imposed the ban. The court will hear evidence on oath from you and any other witnesses you wish to call and will also consider any documentary evidence that you produce in support. There are specific criteria which the court must take into account when considering your application. These sorts of applications can be difficult to make successfully and I would strongly recommend you seek advice and representation from an expert.

I was banned from driving for 4 years after being convicted of drink driving for a second time, I was also charged with leaving the scene of an accident and driving without insurance. I have served 32 months of the sentence, I have recently lost my job and need to travel to seek work, is it possible to appeal against the time remaining on my ban?

Under the Road Traffic Offenders Act you are entitled to apply for your licence to be reinstated after serving half in the case of a 4 year ban. The application must be made before the court that banned you in the first place. The court will take into consideration your conduct and character since the ban was imposed, the nature of the original offence and any other relevant circumstances. The court's will only reinstate your licence early if there are persuasive reasons for doing so. I think your application is more likely to succeed if you had a firm job offer in writing that was conditional upon you holding a driving licence. If your application fails then you cannot make another application for another three months. You should take advice about your application before making it. This advice is available for a fixed fee.

I have to go to court for a drink driving offence and this will be my second conviction within the last 10 years. Last time I was given a 12 month ban for a reading of 56mg and this time my reading is 73mg. I am not expecting to avoid the 3 year minimum ban but I am hugely worried about the possibility of a custodial sentence.

I assume from the limited information in your email that you admit this offence and intend to plead guilty. If so you will be given credit in the form of a 1/3rd reduction in any punishment if you plead guilty at the earliest opportunity. That said, I'd recommend that you seek legal advice before tendering your plea. A road traffic lawyer would be able to look at the evidence and tell you what to do after checking, for example, whether the police have followed the correct procedures and if the breath results were taken correctly and can be relied upon.

You're quite right, a second conviction of this type within a 10 year period attracts a minimum 3 year disqualification. Beyond that the Magistrates Court sentencing guidelines suggest that a reading in breath of 73 mg should attract a band C fine. As a guide this can equate to around 150% of your weekly take home pay. However, these are guidelines only and the court will judge each case and each defendant on their own merits. The court will take into account other factors, including previous convictions. Usually, the sentencing guidelines suggest that a custodial sentence should only be considered at readings of 116mg and above. The question is whether, in your case, your previous conviction will be a serious enough factor for the court to up the sentence to one of imprisonment. It is impossible to say with any certainty as this will depend on the extent of any aggravating features of the case and the mitigation that is put forward on your behalf. I understand that you were pulled over as part of a routine check rather than due to erratic driving or being involved in an accident, it's almost a full ten years since the last drink driving conviction and you have had no other convictions in the intervening period and, by the sounds of things, you fully co-operated with the police. All of this will help your case as will any personal mitigation that can be put forward, for example your family and employment situation. If the Court felt that a fine was not sufficient there are a range of penalties that they can now consider as an alternative to an immediate custodial sentence, such as a suspended sentence or community order with unpaid work or supervision.

You may feel it's worthwhile to secure representation at the hearing to put your mind at rest and ensure the best possible outcome to the case.

I received a 3 year ban for being drunk in charge of a vehicle. Whilst serving my ban I drove again and have received a further 2 year ban, is there anyway to reduce this ban?

The law enables you to apply to the court for the removal of a disqualification after serving the following:

- 2 years of the ban if the ban was for less than 4 years or

- one half of the ban if the ban was between 4 and 10 years

However, in considering your application the court must have regard to the character of the person disqualified and his conduct subsequent to the order. Given that since receiving the order you have breached it by driving whilst banned so soon after the disqualification was imposed, I would say you chances of successfully having the disqualification removed are very slim.

I suffer from gastro-oesophageal reflux disease (constant reflux of the stomach into the oesophagus and mouth), when pulled over by police I requested a blood test be taken in place of a breath test, as my condition can lead to an inflated reading, I was denied this option and subsequently failed the breath test with a reading of 53mg. Do I have a case to contest this?

This is a question that either a medical expert or expert in the use of breath testing machines (or both) would have to answer. Certainly, mouth alcohol, which can be caused by belching or due to very recently consumed alcohol for example, can contaminate a breath reading. It is entirely possible that the condition you describe could contaminate a breath sample in a similar way.

However, most breathalysers have an in built facility that is designed to detect the presence of mouth alcohol and automatically notify the user of the machine of this fact. This information is usually recorded on the print out that the machine produces.

It is difficult to answer the question categorically without seeing the evidence (i.e. the police officers statement, MGDD/A form used by the police during the breath testing procedure, custody record and machine printout) a report from a medical expert commenting on your condition and a report from an expert commenting on whether this could and did contaminate the reading in your particular case. All I can say is that it is a possibility that may be worth investigating.

I was charged with drink driving whilst sheltering in my car in a private car park (with gates), is this legally a private car park or a public place?

The answer is the land in question could be both a car park and a public place. The offence of drink driving or being drunk in charge of a vehicle can be committed on a "road or other public place". The definition of road is a defined right of way between two points and must be a place to which the public have unfettered access. Private car parks may or may not fulfil this definition, depending on the particular characteristics of the piece of land in question and this is something that would require more detailed investigation. If it does not fulfil the definition of a "road" and is not a place to which the general public have access then you may have a defence.

I was disqualified from driving for 2 years following an offence of drink driving. My ban is due to expire next month. Is my licence returned to me automatically or do I have to sit a re-test?

The DVLA will not re-issue you with a driving licence automatically. You must apply for a new driving licence using form D27. Unless the Court specifically ordered you to do so, you will not have to sit a re-test but the DVLA are entitled to make medical enquiries before issuing a new driving licence if you have:

been disqualified for driving, or being in charge of a vehicle, when the level of alcohol in the body equalled or exceeded:

87.5 micrograms per 100 millilitres of breath, or

200 milligrams per 100 millilitres of blood, or

267.5 milligrams per 100 millilitres of urine

two disqualifications within the space of 10 years for drinking and driving, or being in charge of a vehicle whilst unfit through drink

one disqualification for refusing or failing to supply a specimen for analysis

I was involved in a road traffic accident and asked to give a breath sample by the police. Although the Officer gave me about 8 attempts at the road side I simply could not provide a breath sample because I was suffering from a panic attack. I was arrested and taken to the police station where, despite being given three further opportunities to provide a breath specimen it failed to register because I was hyperventilating. I was then placed in a police cell where the panic attack worsened. The police nurse came to see me to check me over and could see I was in obvious distress. Despite all of this I was never asked to provide a urine or blood sample, something I am sure the nurse could have done? I now have a court date for failing to provide a breath specimen. As my reason for failing to give a sample can be verified by the police nurse and the police did not request any other samples (urine or blood) I would like advice on whether I am likely to be found guilty and if so what sort of punishment to expect?

A person can be guilty of Failing to Provide a Specimen without necessarily refusing. Providing the police request for a specimen of breath was bona fide then failure to provide either a breath specimen at the road side or two evidential breath specimens at the police station is an offence. It could be alleged that you have committed two separate offences in your case, once by failing at the road side and a second by failing at the police station. A conviction for failure to provide a specimen of breath carries up to 6 months in prison. In addition there would be a mandatory disqualification. Current Magistrates Court sentencing guidelines suggest the ban should be for not less than 24 months.

However, you have a defence which, if successful, will avoid this. You may be able to establish that you had a "reasonable excuse" for not providing. Once you assert that you had a reasonable excuse, providing it is capable in law of amounting to such, it is then for the prosecution to prove beyond all reasonable doubt that there was no reasonable excuse. The leading case says that for circumstances to amount to a reasonable excuse it must arise out of a physical or mental inability to provide a specimen or a substantial risk to health in it's provision. In your case you seem to suggest that your panic attack and severe hyperventilation meant that you were physically incapable of providing a specimen and that the police officer acknowledged you were trying your best. This may be linked to post traumatic stress following your accident. If the court accept this argument then you ought to be found not guilty.

The police are not obliged to offer you the option of blood or urine in a case like this, although they usually do where Defendants have a genuine reason for being unable to provide breath. The fact is they could have done had they wanted to but chose not to.

Case law is littered with examples of Defendants being found not guilty of failing to provide breath specimens for reasons similar to yours. To maximise your prospects of success you will need to rely on persuasive medical evidence. Firstly, you ought to obtain a statement from the nurse who treated you in the police station and possibly other medical evidence in support. If there are any other instances where you have been treated for panic attacks in the past then evidence of these may also help. Strong medical evidence is the key to the success of your case as well as an expert motoring lawyer to gather your evidence and argue your case for you.

I was involved in a car accident after consuming 2 alcoholic drinks, I panicked and returned home. Once at home I consumed more alcohol, the police then arrived and performed a breath test which I failed. Is it possible to prove that despite failing the breath test at home that at the time of the accident I was under the limit?

What you are raising is commonly called a "hip flask" defence. In other words the alcohol in your body at the time you provided the breath sample was down to post accident consumption. The law says that the onus is on you to prove that the alcohol in your body was consumed after the accident rather than before it. To do this you will have to obtain a report from a forensic scientist called a "back calculation" which will tell you what level of alcohol, if any, was in your system at the time of the accident. To do this the forensic scientist will require certain specific information before he can produce a report. If the report is favourable then you would want to rely on the expert's evidence at your trial and his report would then have to be served on the prosecution in accordance with the Criminal Procedure Rules (i.e. at least 7 clear days before your trial date). Back calculations by scientists are very precise and are based on tested scientific formula. If the expert is given incorrect information then his report will be flawed and usually, the expert will be able to tell that he has been given duff information and if he says this in his report then this can undermine the whole basis of your defence. Thorough and detailed preparation is essential if you are to succeed.